Posted
by
Soulskill
on Saturday April 14, 2012 @09:19AM
from the play-nice-children dept.

itwbennett writes "Slashdot readers will recall that Carpathia Hosting, which is hosting the frozen data of 'up to 66 million users', would like to be released from that expense. But Judge Liam O'Grady has another idea: 'Lawyers for Megaupload, the U.S. Department of Justice (DOJ), Web hosting provider Carpathia Hosting and other groups fighting over who should maintain 1,100 servers formerly used by Megaupload should sit down and work out an arrangement,' O'Grady said Friday.' Stay tuned: The lawyers are due to report back in two weeks."

Isn't this cut and dried that the DoJ to pay for the hosting? Or maybe the servers should be handed over to megaupload in a New Zealand data center if they don't want to pay up.

Interestingly, we've now established that most downloads from Hotfiles were open source software [torrentfreak.com], certainly the DoJ claims that MegaUpload actively pursued Pirate uploads, but it's clear that MegaUpload has "significant non-infringing uses". It follows they should actually be returned to operation but still face the charges for encouraging piracy.

About the moment seized the equipment, it became their problem. As I understand it, Megaupload lost privileges to do anything. It's now evidence. They should have taken possession of it.

But since Megaupload is contractually obliged to pay for the space and bandwidth, and the equipment is still there, they have to keep paying on the contract.

The judge *should* have ordered that the hosting provider was either required to hold onto the equipment indefinitely, or hand it over to the DoJ. Either of those would be at the expense of the DoJ. This decision of "go work it out for yourselves" really smells like the DoJ doesn't have enough of a case for the judge to sign off on taking possession.

The equipment must take up about 30 racks or so. That's a pretty sizable footprint in most datacenters. It seems the hosting provider is being very cooperative, and even though the "storage" cost seems high, it's about right for full racks, if they're dropped the power and network connections.

But since Megaupload is contractually obliged to pay for the space and bandwidth, and the equipment is still there, they have to keep paying on the contract.

Well, not necessarily. They have a contractual obligation to pay for the bandwidth and hosting.
The DoJ's actions have forced the hosting provider into a situation where they are no longer providing the hosting
agreed upon in the contract; IOW, the government have forced the hosting provider to no longer be upholding their end of the contract

I don't understand why they just can't reimburse the hosting company for the hard drives with all the data on them (so they can buy replacements and continue operating their business) and put the ones with all the data on them in storage.

I mean, I get that we're talking about a massive amount of data here, but hard drives aren't that big. It's not like they're going to need to clear room in that warehouse where they store the Ark of the Covenant or anything.

If that's too much work, why not just mirror the data somewhere and let the hosting company wipe the drives and got on with life?

It just seems like these issues are trivial but the players involved are making them out to be far more complicated then it needs to be (in some cases deliberately, I'm sure). It's all a bunch of fucking ones and zeros and the people involved in the case are making it out to be a lot more than that.

It's amazing how quickly people are willing to waste OTHER PEOPLE's money.

The right solution is to allow a company to continue operating until it has been found to be in violation by the time that due process ENDS—you know, "innocent until proven guilty". If the company is found in violation, then it would have to pay damages for the time that it continued to operate during due process. If the company was afraid of being found in violation,

1) The DOJ is saying they're fine if it gets destroyed. That makes any argument that you can't give it to the accused pretty flagrantly specious.2) If the DOJ did actually want a clean copy as evidence, they can make themselves a copy and then put the original equipment back into service until the verdict comes down.

The hosting company (Carpathia) has not been prevented from doing anything by the DOJ. They are free to continue operating. MegaUpload is the company saying that the servers should be kept online (with their data).

Yes, they should be allowed to continue operating unless/until found guilty in a court of law. Any particular act that was a crime has certainly stopped by now. Should the FVBI witness any particular act during that time that is a crime, they are free to say stop at that point and add it to the pile of evidence they claim to have.

The problem with the "stop doing what your under scrutiny" bit is that it is effectively the same thing as a shutdown. What lawyer in their right mind is going ot advise a client to continue to do what they are currently in court for? Not to mention voluntarily stopping might be twisted into admission of guilt: "well clearly they knew what they were doing was wrong because as soon as they knew that we were watching they stopped".

I totally agree with the continue operating until proven guilty bit but it is d

The DoJ can't legally delete the non-infringing files. As long as the servers are in their possession, they really can't do anything with them except copy them or return them to their owners, and I don't know if copies of the files on the servers would be admissible in court. If they want to use the data on the servers as evidence in their trial, they may have to hold on to the servers they originally seized. But nothing prevents them from copying the files on the servers and returning those files to Carpathia.

But that's not what Carpathia would want. To them, a lot of the value is in the hardware. They would want the original hardware back with files intact and that's not going to happen anytime soon unless either DoJ dismisses the case or MegaUpload pleads guilty. And the value of the hardware and stored files could decay to near nothing by the time a criminal case could make it through the courts. And should they get a conviction and MegaUpload appeals you can cut that almost nothing to actually nothing.

I don't see how they are going to work this out in a way that doesn't maximally screw over non-infringing users.

But that's not what Carpathia would want. To them, a lot of the value is in the hardware. They would want the original hardware back with files intact and that's not going to happen anytime soon unless either DoJ dismisses the case or MegaUpload pleads guilty

Why do you think Carpathia cares about the files?They care about the hardware, because it's theirs and it's costing them money without generation revenue.The files on the servers are Megaupload's.

In RIM vs. NTP, the court toyed with the idea of shutting down the BlackBerry network, cutting off thousands of BlackBerry users. Some of those users were government workers and Congresspersons. The court decided not to order a shutdown because it would be "unworkable" to exclude customers in the government from the shutdown. More like, the court realized in this case their power was unworkable, and inconveniencing Congress would be about the quickest way to lose that power. They didn't seem much concerned with the damage such an action would do to innocent 3rd parties.

In Verizon vs Vonage, the court actually went beyond making threats. The judge threatened to shut Vonage down, but didn't do it. However, Vonage was actually ordered not sign up new customers.

SCO took matters even further on their own. They used the threat of legal action to push innocent 3rd parties into paying a "license fee" to use Linux. They had the nerve to demand that all Linux users pay this fee. Never mind they hadn't won their case yet. Never mind that even in the event of a win, the losers should be paying, not the public. The courts' incredible powers were being used by a litigant to scare and blackmail the public.

The court did shut down Napster. Wantonly and irreparably destroyed a service millions of people had been using, describing Napster as a "monster", and ultimately for naught as other services quickly filled the void. They killed many of those services too, and in vain. None of those acts stopped piracy. The Pirate Bay may be the leading surviving service now. They misidentified the monster. It wasn't Napster, it wasn't even the Internet and technology itself, it was Nature.

It's astonishing that the courts can even think of doing such spiteful things. Keep on threatening to chop babies in half, as in the Judgment of Solomon, and it will someday backfire. The court will be forced to admit they were bluffing, or really cut the baby in half. It has happened. The courts are baby killers.

He didn't slide off the end, he was literally historically accurate. You could say that he used the wrong tense, but that wouldn't even hold up under analysis. Analysis shows that he was using "baby" metaphorically, so it didn't matter that the examples of real babies being killed are historic. The metaphoric babies are still being killed.

However, the problem with the argument is that often two sides will each be supporting their own metaphoric baby. In this case ANY decision will kill at least one of them, and often no decision, or a delayed decision, will end up killing both.

The legal system is not about justice. They don't even claim to be about justice anymore. Instead they claim to be following the rules. (Often they are.) So to lawyers and judges, legal cases are essentially high stakes gaming. With a variable scoring system.

If there is infringing content, Tte account holders put it there in the first place, so having read only rights to the account holders only wouldn't distribute it any further - at least not through megaupload.....

That's not necessarily true. Let's say you created an account just to hold your infringing copies of movies. You might (if you're not smart) give person X your account name and password so he can share your files. Now he may think he has nothing to lose by sharing your login info with the world and letting hundreds or thousands of people download it. The government doesn't want that to happen, clearly. The government is probably going to be blaming all this on the account holder and charging you with ma

Wait... so they want to harm everyone, even innocents, because someone could download copyrighted material? Even if it was the same person that put it there to begin with (and thus already have it)? They sure do love collective punishment.

The fact that suspect data is intermixed with legal data is not the DoJ's doing. What would you propose? Should they just monitor who downloads what and prosecute those who downloaded the data that they allege is infringing copyrights?

What do I propose? It won't happen, but I wish they'd stop wasting manpower and taxpayer dollars going after copyright infringers. As for what they should do now, they could just let people download the data but not upload anything.

I'm tired of copyright infringement being treated like it's a national security emergency when it's, in reality, less of a problem than jaywalking. The police should never be involved with this shit.

I rent a storage unit from Storage-R-Us. Joe Schmoe also rents a unit from them, and puts stolen property in it. Does the DOJ have the right to confiscate my property as well as Joe's, just because Storage-R-Us owns the rental units?

in a perfect world, DoJ has the obligation to go through all the storage units and search for stolen property, impounding the entire contents of each unit they find stolen property in; the rest, once checked, are allowed usual access for the keyholders to remove their property but Storage-R-Us would not be allowed to take money, put anything else into storage or sign up new clients *while the investigation is ongoing*. Running cost would be met by DoJ while they carry out their investigation *only if their

That's a bad analogy, as are most analogies between physical property and computer files.

The allegedly infringing files are on the same hard drives on the same servers as the completely legitimate files. The DoJ seized the servers as the easiest way to seize the MegaUpload files before MegaUpload could delete them. MegaUpload won't tell them which accounts might have infringing files in them because if they did, they would be admitting to complicity in the crime of making illegal copies of those files. T

"The DoJ claims that there is a large amount of infringing data on the servers and that it would be illegal to allow the account holders to download it."

DOJ bears the burden of proof. Legally, it must show the content is infringing, or release it. If you want to get technical, it should have had to show that any particular content was infringing BEFORE seizing it.

Technically, DOJ is currently breaking the law, because it has "interfered with" thousands or even millions of legitimate business contracts in order to prosecute OTHER PEOPLE who might not be legitimate. The government is specifically prohibited by the Constitution from doing that.

"The DoJ claims that there is a large amount of infringing data on the servers and that it would be illegal to allow the account holders to download it."

DOJ bears the burden of proof. Legally, it must show the content is infringing, or release it. If you want to get technical, it should have had to show that any particular content was infringing BEFORE seizing it.

Technically, DOJ is currently breaking the law, because it has "interfered with" thousands or even millions of legitimate business contracts in order to prosecute OTHER PEOPLE who might not be legitimate. The government is specifically prohibited by the Constitution from doing that.

"The DoJ claims that there is a large amount of infringing data on the servers and that it would be illegal to allow the account holders to download it."

DOJ bears the burden of proof. Legally, it must show the content is infringing, or release it. If you want to get technical, it should have had to show that any particular content was infringing BEFORE seizing it.

Technically, DOJ is currently breaking the law, because it has "interfered with" thousands or even millions of legitimate business contracts in order to prosecute OTHER PEOPLE who might not be legitimate. The government is specifically prohibited by the Constitution from doing that.

You're mistaken. The DoJ can seize anything that's named on their warrant. The warrant must be based on probable cause to believe that the persons or things seized were involved in a crime. They don't have to prove anything in the sense you're implying.

So if the warrant (which I have not seen) named Carpathia Hosting's servers then Carpathia Hosting's servers are the things to be seized. In this case, DoJ "seized" them by freezing access to them.

"You're mistaken. The DoJ can seize anything that's named on their warrant. The warrant must be based on probable cause to believe that the persons or things seized were involved in a crime. They don't have to prove anything in the sense you're implying."

You are assuming. I didn't say they had to "prove" anything. I did write "show", but I intended that to include probable cause. I could have worded it better.

More to the point, however: probable cause or not, in regard to those who they feel were violating the law, they ALSO seized digital "assets" of thousands or millions of legitimate customers, who cannot now retrieve that data. And DOJ seems to have little to no regard for that fact.

"So if the warrant (which I have not seen) named Carpathia Hosting's servers then Carpathia Hosting's servers are the things to be seized. In this case, DoJ "seized" them by freezing access to them."

Hosting providers should have a "kill switch" such that in the event of litigation, all hard drives will be physically removed, boxed, and turned over to law enforcement, all contracts terminate instantly, and if anyone wants their data back they can go fight DOJ etc.

Anyone who doesn't back up their data deserves to suffer for being stupid. Yes, really. Some things will never not be a bad idea, and no matter how much people bitterly resent backing up their work there is every reason to do it and no logical one not to.

So just being accused should be enough to shut a company down? Even if only for the time it takes to find new hosting and restore a backup, you're talking about a lot of wasted money. Or do you propose more government departments to decide if it'd require a take down? Of course they'd need supervisor's too, and senate committees, and on and on wasting tax payers money. Really, I have too many questions with dire answers to list. But I'm sure in your world everything's always black and white with no abuses o

Hosting providers should have a "kill switch" such that in the event of litigation, all hard drives will be physically removed, boxed, and turned over to law enforcement, all contracts terminate instantly, and if anyone wants their data back they can go fight DOJ etc.

Which would be irrelevant in this case, because the DOJ is refusing to accept the servers. So they're all boxed up ready for the DOJ and the DOJ just says "YOU hang onto it".

Otherwise why is the DOJ fighting all attempts by Carpathia to offload

is "frozen" data? this seems like a pretty simple fucking solution. turn the servers back on for 120 days and set the fstab to read-only. Turn them back off later and continue the scapegoating process of destroying one mans free time and personal fortune in the pursuit of "copyright enforcement"

You ever heard of a “Japanese Inspection?” Japanese Inspection, you see, when the Japs take in a load of lettuce they’re not sure they wanna let in the country, why they’ll just let it sit there on the dock ’til they get good and ready to look at, But then of course, it’s all gone rotten ain’t nothing left to inspect. You see, lettuce is a perishable item

(from "Days of Thunder")

From day 1, the behaviour of the authorities on this case has stunk. The first thing that struck me about their arrest of Kim Dotcom was that they turned up at his mansion with a trailer, and hauled away his pink Cadillac right there on the spot - confiscating his property before he'd even had a trial.

If they are evidence, they go into the custody of the authorities. They don't sit there, rotting away the funds of the company, unless of course, that's the intention.

Why bother to bother getting a conviction, when you can achieve your aims by stealing things and then stonewalling?

Somehow I think they expect he should have been bribing more politicians.

N.B.: I'm not guessing whether or not he was technically guilty or not. I'm commenting on the process. It's sort of like RICO...if you get accused, the first thing they do is prevent you from being able to hire a good lawyer.